DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW
DECISIONAL DOCUMENT


FOR OFFICIAL USE ONLY


ex-FA, USN
Docket No. ND05-01286

Applicant’s Request

The application for discharge review was received on 20050802. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060721. After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to drug abuse.

---

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“My discharge was inequitable because it was based on one isolated incident in less then 28 months of service with no other adverse action, when I was at tpu, Norfolk, VA while I was on medical hold from a gun shot wound that happened on active duty, as shown in my med record that I don’t have because they discharged me with know records other than my DD214, and I still haven’t receive Veteran’s Affair help that my doctor state on my med hold discharge paper due to under then honorable discharge. I was cared for at Pormusth Navel Hospital”


Documentation

Only the service record was reviewed. The Applicant did not provide additional documentation for the Board’s consideration.

---

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Inactive: USNR (DEP)     20030327 – 20030603               COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 20030604             Date of Discharge: 20041105

Length of Service (years, months, days):

         Active: 01 05 01 (Does not exclude lost time.)
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: 4 days
         Confinement:              none

Age at Entry: 19

Years Contracted: 4

Education Level: 12                                 AFQT: 38

Highest Rate: FA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 2.0 (1)     Behavior: 1.0 (1)                 OTA: 1.50

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal.

---

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/ MISCONDUCT, authority: MILPERSMAN, Article 1910-146, formerly 3630620 .

Chronological Listing of Significant Service Events :

040408:  NJP for violation of UCMJ, Article 86.
Award: Forfeiture of ½ pay for 2 months (suspended), restriction and extra duty for 30 days. No indication of appeal in the record [Extracted from Evaluation Report & Counseling Record dtd 040509].

040618:  Applicant transfer to TPU, Naval Station Norfolk, VA.

040624:  Applicant to unauthorized absence at 0730 on 040624.

040628:  Applicant from unauthorized absence at 0730 on 040628.

041105:  DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse per MILPERSMAN 1910-146.


Service Record did not contain the Administrative Discharge package.

---

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20041105 by reason of misconduct due to drug abuse (A) with a service characterization of under other than honorable conditions. After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C). The Board presumed regularity in the conduct of governmental affairs (D).

The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. In the Applicant’s case, in the absence of a complete discharge package and without credible and substantial evidence to refute the Board’s presumption, the Board evoked the presumption of regularity. Specifically, the Board presumed that the Applicant met the criteria for discharge by reason of misconduct due to drug abuse, was properly notified, waived or was afforded all rights which he elected and that the Applicant’s discharge was directed by proper authority.

The Applicant states his discharge was based on one isolated incident in “less then 28 months of service with no other adverse action.” Despite a servicemember’s prior record of service, certain serious offenses, to include violation of Article 112a of the UCMJ for wrongful use of a controlled substance, warrant separation from the naval service in order to maintain proper order and discipline. In addition to drug abuse, the basis for mandatory processing for separation, the Applicant was awarded nonjudicial punishment on 20040408 for violation of Article 86 of the UCMJ. The Applicant’s second period of unauthorized absence, from 20040624-20040628, was not adjudicated. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The Applicant implies that his discharge should be changed because he was “on medical hold from a gun shot wound that happened on active duty.” DoD disability regulations do not preclude a disciplinary separation. Appropriate regulation stipulates that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record. Relief on this basis is denied.

The Applicant implies that his discharge should be upgraded to facilitate receipt of Veterans’ Affairs benefits. The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Relief on this basis would be inappropriate.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A . The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until 28 April 2005, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .

---

PART IV - INFORMATION FOR THE APPLICANT

If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Directive 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil ”.

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

                  Secretary of the Navy Council of Review Boards
                  Attn: Naval Discharge Review Board
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023